On May 3, police in Yunnan abducted human rights lawyer Chen Jiangang. He was forced to drive with security over 3,000 kilometres back to Beijing. He remained in their custody for over 80 hours, coincidentally missing the trial of his client, Xie Yang, whose torture he had exposed in January.

At his trial, Xie Yang “admitted” to having been brainwashed by foreign agents, and on Hunan state TV he repeated that he had sensationalised cases and denied that he had been tortured. Xie Yang had anticipated his forced confession.

Xie, detained in July 2015, wrote in a January 2017 affidavit, “If, one day in the future, I do confess – whether in writing or on camera or on tape – that will not be the true expression of my own mind. It may be because I’ve been subjected to prolonged torture, or because I’ve been offered the chance to be released on bail…” Soon after his trial, Xie was released on bail, but he is not free.

It seems police abducted Chen Jiangang to ensure his silence during Xie’s trial, but as soon as he was taken, reasonable fears circulated that he would be “disappeared”. Like Xie Yang, Chen’s understanding of the cruelty of China’s police state bred prescience. Three months earlier he had recorded a video statement to be released if he lost freedom. It was published on the China Change website soon after he was taken.

A sombre five minutes, Chen states that he has committed no crimes and won’t accuse others. Any spoken, written, or video confession will only have been made under duress, threat, or torture. If, in the future, he ends up on television accusing others or revealing names, he asks for forgiveness. Emotionally, he ends with, “If I am seized, dear kids, your father loves you. If I lose my freedom, release this video.”

While such prerecorded statements are becoming more common for human rights defenders in China, still more should learn from those like Chen Jiangang that protecting their clients or themselves also involves controlling narratives. Such statements are an important innovation in protection tactics in response to China’s increasing fetish for disappearances and forced confessions.

China is a fan of forced confessions

Forced confessions violate Chinese law and international norms. For those awaiting trial, broadcasting forced confessions violates their right to a fair trial. Many forced confessions come following hundreds of days in pretrial detention, which itself should be the exception, never the rule, and only for the shortest time necessary. The risk of torture is already high in a criminal justice system reliant on confessions, while the pursuit of forced confessions drastically increases the risk. Victims of enforced disappearance and secret detention are especially vulnerable to torture.

Emblematic is the case of my friend and former colleague lawyer Wang Quanzhang, whose exact fate and whereabouts have not been verified since police abducted him in August 2015. In January 2017, it was revealed that he has been tortured. Likely, Wang’s ongoing abuse is largely due to his refusal to perform a forced confession.

Part of the “709 Crackdown,” several prominent human rights lawyers have been forced to deliver televised confessions, from Wang Yu to Zhang Kai, who later disappeared a second time after he publicly recanted his initial forced confession. A couple months earlier, in June 2016, Hong Kong bookseller Lam Wing Kee also revealed that he and his colleagues at Mighty Current publishing had been forced into confessing, including Gui Minhai who remains incommunicado.

In his televised “confession,” Gui, a Swedish citizen, asked not to receive diplomatic assistance and renounced his Swedish citizenship. This has been rightly dismissed as arising from coercion but what if Gui, like Chen Jiangang, had left a video preemptively dismissing such absurdity? For many who disappear into China’s Orwellian darkness, and reemerge to “confess,” their last credible speech act may be what they leave with others, which in turn may offer some protection.

Scholars have identified the dramatisation of glaring state contradictions as creating opportunity for resistance. In practical terms, if preventive protection measures against certain forms of repression are increasingly adopted, the authorities are more likely to abandon them, ultimately protecting human rights defenders from being subjected to them in the first place.

Preventive protection and forced confessions

Video is powerful and rights defenders at risk of disappearance or forced confession should record their statements rather than just writing them down.

Before recording, it is important to conduct a thorough threat assessment, which should be detailed and constantly reviewed and updated.

Once taken, it is often too late to ask that person what assistance they want. Even if allowed to meet a lawyer, pressure often limits what one is able to say. This is why recording in advance is so important. The message depends on the individual. Gui Minhai could have expressed that he had already given up Chinese citizenship and would never renounce Swedish citizenship. For others it could be stating that they would never accept a state appointed lawyer. Some might want to issue a statement about family members, that except if subjected to threat or torture they would never deny access to the family bank account, a measure the state has used to target family members’ economic livelihood.

It is also important that the video preempts likely accusations, such as noting that under no circumstances but duress or torture would one admit to being a criminal, or denounce colleagues. One might state they have never colluded with foreign forces to cause trouble, that they believe in human rights and the rule of law, respect their work, and would never denounce their efforts to strengthen the rule of law in China, except if under threat to do so.

Human rights defenders should make sure they have a safe contact responsible for sharing the video if anything happens. Sorting out power of attorney issues before detention is vital, even if the state is likely to refuse a meeting with lawyers on other grounds. The person responsible for releasing the video, family members, and lawyers should all be in contact and aware of the video statement.

It is a travesty of the rule of law that anyone would need to think of preemptively recording their own defence against baseless charges and forced confessions but if more human rights defenders did so then potentially the power of this repressive measure will ultimately be lost through the unmasking of contradictions.

This article was originally published at the Diplomat on February 10, 2016.

Following Tsai Ing-wen’s electoral victory last month, KMT lawmakers have been challenging Ms. Ing-wen, who will be inaugurated as Taiwan’s first female president on 20 May, and her Democratic Peoples Party on several issues. Among them, Ms. Ing-wen has been demanded to reveal her stance on the abolition of the death penalty. While capital punishment remains relatively popular in Taiwan, Lin Hsinyi, Executive Director of the Taiwan Alliance to End the Death Penalty, has pointed out that none of the KMT lawmakers who attacked the DPP over the abolition of the death penalty have been reelected. For her, “this congress is more friendly to human rights.” What will this mean for the death penalty in Taiwan?

In early June 2015 six death row inmates were executed at four locations around Taiwan. Their executions attracted some positive domestic attention but raised numerous concerns internationally. Taiwan has come under criticism several times by international human rights organizations for failing to adhere to procedural guidelines and the apparent use of capital punishment for political purposes. Such accusations could amount to violations under international law but this could change with Tsai Ing-wen and the DPP, which has tended to support abolition.

The Politics of Death

The Taiwan Alliance to End the Death Penalty (TAEDP) has observed that, “all the executions since 2010, when the four-year moratorium was lifted, took place when the government approval rate was low.”

Taiwan had a moratorium on capital punishment from 2006 to 2010.

In March 2010, then Minister of Justice Wang Ching-feng voiced support for the abolition of capital punishment and stated she would refuse to sign any execution warrants. This fueled a pro-death penalty social movement lead by entertainer Pai Ping-ping whose daughter had been murdered in 1997 and lead to Wang’s resignation. Tseng Yung-fu assumed the role of Minister of Justice and reinstated the death penalty. In April, negotiations surrounding a trade agreement between China and Taiwan caused high public disaproval. On 30 April 2010 the first executions since 2006 took place.

The Ministry of Justice consistently denies allegations of impropriety but has refused to provide records of its meetings on death row inmates or the criteria for deciding the timing of an execution.

There have been executions, timed around episodes of low government approval, every year since the moratorium was lifted. The executions in June are emblematic.

In March 2015 four subway commuters were killed in Taipei and in May an 8-year-old girl was killed at her school. Public outcry demanded the death penalty for the attackers. Abolitionist politicians and rights campaigners were harassed and threatened. In early June, then opposition party chairperson, Tsai Ing-wen drew considerable domestic media attention for a high profile trip to the United States, at the expense of the already unpopular KMT. Amid public outrage over the heinous murders and growing popularity for the opposition party, the timing of the 2015 executions is suspect. There were also several legal irregularities.

The initial list of those to be executed included Chiou Ho-shun, who had been sentenced in 1989 following four months of secret detention and reports of being tortured into confession. Amnesty International has repeated called for his release.

Three of the men who were executed, Huang Chu-wang, Wang, and Cheng Chin-wen, had filed special appeals on the day of their executions. This could reflect either a cursory or non-existent review. There has never been a successful case of a death row inmate filing a special appeal or commutation.

Lawyers for the three inmates were not notified of the rejection of appeal until after the executions. More concerning, two of the men executed in June, Wang Hsiu-fang and Wang Chun-chin, had no legal representation at their final trial before the Supreme Court.

Taiwan’s Criminal Procedure Code does not guarantee legal defense for final appeals. In 2012 a draft was proposed that would change this in cases involving a minimum punishment of three years but it has not yet become law. Many current death row inmates did not have lawyers at their final trials.

In 2012, the final appeal retrial in one death row case found the three defendants not guilty of the 1991 murder for which they had spent more than 20 years in prison.

This raises concern over the right to a fair trial, which includes the right to legal defense and appeal. If political calculations have been behind the timing of executions since 2010, it could constitute an arbitrary imposition of the death penalty, which would amount to a violation of the right to life.

International law does not explicitly ban capital punishment but places strict procedural guidelines on those countries that have not abolished the death penalty.

Taiwan and International Law

In 2009, Taiwan announced the ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Taiwan is not a State Party to the United Nations but effective ratification was accomplished through the Implementation Act, establishing that all domestic law align with the Covenants.

Article 6 of the ICCPR guarantees the right to life and protection from arbitrary loss of life. It prohibits the death penalty when it may constitute a violation of other rights, most notably the prohibition against torture.

Preventing the arbitrary deprivation of life requires that any decision to impose the death penalty must be narrowly circumscribed by clear and transparent principles in line with the Covenant.

This requires strict adherence to Article 14’s right to a fair trial. The Human Rights Committee has noted that, “the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.”

Anyone sentenced to death is entitled to seek pardon. This is enshrined in ICCPR Article 6(4). Number 8 of the 1984 Safeguards guaranteeing protection of the rights of those facing the death penalty adds that no execution shall be carried out pending an appeal, pardon, or commutation. The right to seek pardon carries the expectation that in some circumstances a pardon may be granted, otherwise the right is relatively empty.

Although not legally binding, UN General Assembly resolution 65/206 calls upon all states to “make available relevant information with regard to their use of the death penalty, which can contribute to possible informed and transparent national debates.” This is important for ensuring a fair trial and strict adherence to procedural rules at every stage of the process, from the initial trial to final appeal and scheduling of the execution.

Tsai Ing-wen’s Challenge

While advocates for the abolition of the death penalty have felt Tsai Ing-wen hasn’t been explicit enough in her position, KMT lawmakers have challenged her for supporting abolition. Such with Alex Tsai, for example, who was quite vocal on pro-death penalty issues during his campaign but was ultimately not reelected. Such failure for pro-death penalty lawmakers points to a possible decrease of importance for maintaining the death penalty for voters. This presents the best opening for a return to a moratorium and steps toward abolition without sacrificing political capital for the DPP.

Tsai Ing-wen is likely to face conflicting pressure moving forward, says Hsinyi of TAEDP. The new president may face public pressure to carry out an execution from those in favor of continuing the death penalty.

On the other hand, there is international pressure. In 2013, Taiwan received a delegation of independent experts to review its implementation of the ICCPR and ICESCR. The second review will take place in early 2017 and the death penalty is likely to be a high priority. If Tsai Ing-wen wants to demonstrate her commitment to human rights she will need to consider Taiwan’s implementation of the two Covenants.

Who Tsai Ing-wen appoints as the Minister of Justice is among the first key indicators. Lawyer Gu Lixiong, known for his support for abolition, was assumed my many to be a likely appointee but his election into the Legislature rules him out.

In 2009, abolition minded Justice Minister Wang Ching-feng created a working group on the death penalty, which included NGOs, lawyers, and academics. Although the working group was dismantled shortly after her resignation, Tsai Ing-wen has been advised to reestablish such a working group, which could also support public education and participate in a national dialogue on abolishing the death penalty.

Even if abolitionist minded lawmakers are able to float a bill, there’s too little understanding and support for the passage of any such law, which is where the importance of such a working group can be seen.

Moving Forward

Until a more thorough investigation into the use and potential political abuse of the death penalty, Taiwanese human rights groups say Tsai Ing-wen should announce an immediate moratorium. She should promise to more closely implement the ICCPR and encourage the Legislative Yuan to establish a National Human Rights Commission in line with the Paris Principles. Although in December the Executive Yuan granted a Freedom of Information Request filed by TAEPD last August requesting the Ministry of Justice to reveal its decision making process on signing execution orders, the system remains far from transparent. How Tsai Ing-wen responds to these issues leading up to and following her inauguration in May will matter.